Scrutiny of Acts and Regulations Committee

Alert Digest No 1 of 2006

Tuesday, 7 February 2006

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Crimes (Document Destruction) Bill

Introduced: 15 November 2005
Second Reading Speech: 16 November 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

The Bill amends the Crimes Act 1958 (the ‘Act’) to create a new offence in relation to the destruction of a document or other thing that may be required as evidence in a proceeding.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than by 1 September 2006.

[3]. Inserts a new Division 5 in Part 1 of the Act (new sections 253–255).

New section 254(1) creates a new offence of destruction of evidence. A person who knows that a document or other thing of any kind is, or is reasonably likely to be, required in evidence in a legal proceeding; and either destroys or conceals it or renders it illegible, undecipherable or incapable of identification; or expressly, tacitly or impliedly authorises or permits another person to do act as described above with the intention of preventing it from being used in evidence in a legal proceeding is guilty of an indictable offence.

The term ‘document’ is broadly defined under section 38 of the Interpretation of Legislation Act 1984 and includes a document in writing, items such as photographs, labels, discs or other devices in which sounds or other data are embodied so as to be capable of being reproduced, films or other devices in which one or more visual images are embodied so as to be capable of being reproduced, and other markings which are capable of carrying a definite meaning to persons conversant with them.

The new offence applies with respect to a legal proceeding, whether the proceeding is one that is in progress or is to be, or may be, commenced in the future.

New section 255 provides principles for corporate criminal responsibility for the new offence.
In a proceeding against a body corporate it is a defence for the body corporate to prove that it exercised due diligence to prevent the new offence being committed by an officer.

The Committee makes no further comment

Crimes (Sexual Offences) Bill

Purpose

The Bill amends the Crimes Act 1958 to –

expand the current offences of soliciting and procuring of children and young people to capture the kinds of grooming activities commonly engaged in by paedophiles, whether online, through electronic communications or through other means or activities. This offence will cover soliciting and procuring of children under 16, of young people under 18 in relationships of care and supervision, and soliciting or procuring of another person to take part in an act of sexual penetration or an indecent act with a child.
clarify the types of relationships that are covered in sexual offences against young people by their carers and supervisors through the express inclusion of specific roles such as employers, teachers, sports coaches and others that bring with them particular responsibility, authority and influence over young people.
clarify and expands a number of offences to place a responsibility on a greater range of service providers not to sexually exploit people with a cognitive impairment, irrespective of whether the medical/therapeutic service is connected to the person’s cognitive impairment or whether a facility is residential or non-residential.
substitute ‘cognitive impairment’ for the current term ‘impaired mental functioning’ where it appears in the Act and the Evidence Act 1958.
clarify that where sexual penetration constituting incest occurs under coercion from the perpetrator, this is not an offence on the part of the victim.
rename the sexual offence of ‘maintaining a sexual relationship with a child’ to that of ‘persistent sexual abuse’ in recognition that an offence under this provision is actually sexual abuse not a ‘sexual relationship’.
clarify that in relation to the offence of sexual penetration with a child under 16, where the child is aged 10 years or over, the onus (burden) of proof for the defence of reasonable belief that the child was aged over 16 lies with the accused person on the balance of probabilities.
provide that expert evidence on the nature and effects of sexual assault may be heard by the court more readily and not unfairly excluded.
make judges’ explanations to juries about the concept of consent in rape cases clearer, to ensure that it is understood that agreement to one act at one time is not consent to other acts at other times.

The Bill amends the Evidence Act 1958 to –

create a right for children and people with a cognitive impairment to give their evidence to the court through alternative arrangements that do not require them to be in the same room as the accused person, instead allowing them to be seen and heard via closed circuit television. These alternative arrangements will also allow children and people with a cognitive impairment to have their evidence pre-recorded once and played before the court at trial. These amendments will ensure that children and people with a cognitive impairment give evidence-in-chief and are cross-examined only once, thus protecting them from having to repeatedly give evidence and from unnecessary delays and further trauma in the prosecution of sexual offences against them.
make it easier for children and people with a cognitive impairment to give evidence by amending the Evidence Act to create a right for them to have a support person of their own choosing present with them when they give evidence.
protect children and people with a cognitive impairment from confusing, misleading, harassing or inappropriate questioning when giving evidence in sexual offence cases.
expand the scope for out-of-court statements made by children to be admitted in evidence as a specific exception to the hearsay rule, subject to certain requirements being met. This will recognise that in many cases, evidence of what a young child has said to a trusted adult will be the best evidence available to the court.
make it easier for courts to assess the competence of children and people with a cognitive impairment to give sworn or unsworn evidence, and ensures that, even where a child is not competent to give evidence in general, there may be some matters in relation to which a child can give evidence that is able to be understood and that should therefore be heard by the court.
ensure that a complainant’s privacy and dignity are better preserved through clearer and tighter restrictions on the use of evidence related to the complainant’s sexual history or activities with the accused person or with another person, and to confidential counselling communications between a complainant and their counsellor.
remove the ability for unrepresented defendants to personally cross-examine complainants in sexual offence cases. It will introduce a special procedure whereby an unrepresented defendant who wishes to question a complainant in a sexual offence case must have their questioning conducted by a barrister who is specially appointed by Victoria Legal Aid for that purpose.

The Bill also amends the Magistrates’ Court Act 1989 to provide that children and people with a cognitive impairment cannot be required to give evidence at the committal stage of the prosecution of sexual offences against them.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than
1 December 2006.

Crimes Act 1958

[5]. Inserts new sections 37A and 37B to set out the objectives and principles to assist in the interpretation of Subdivisions 8A to 8G of Part 1 concerning sexual offences.

[6]. Rape – Amends section 38 (rape) to further define that offence.

[7]. Compelling sexual penetration – Inserts a new section 38A to create a new offence of compelling another person to sexually penetrate himself or herself with an object or a part of his or her body.

[8]. Incest – Amends section 44 to make clear that a person who is compelled to take part in an act of sexual penetration constituting incest is not guilty of that offence.

[9 and 10]. Sexual penetration and indecent act with a child under 16 – Clarifies that in the offences of sexual penetration of, or an indecent act with a child under the age of 16 (under section 45) if the defence of consent in section 45(4) is relevant because at the time of the alleged offence the child was aged 10 or over, the accused must satisfy the court on the balance of probabilities that the accused believed on reasonable grounds that the child was aged 16 or over.

[12 and 13]. Sexual penetration of and indecent act with 16 or 17 year old child – Identifies the sorts of relationships that are captured in the offences of sexual penetration of a 16 or 17 year old child (section 48) and an indecent act with a 16 or 17 year old child (section 49) by a person in authority or supervising the child. These relationships are non exhaustive and have been included because of the degree of authority and control that these roles entail in relation to young people.

[16]. Creates a broader offence under section 51 that captures sexual acts between a person who is a provider of medical or therapeutic services and a person with a cognitive impairment.

[17]. Creates a broader offence under section 52 to encompass sexual conduct on the part of employees, volunteers and others involved in the delivery of programs at both residential and non-residential facilities that are designed to meet the developmental and educational needs of people with a cognitive impairment.

[18]. Procuring sexual penetration of a child – Creates an expanded offence of soliciting or procuring a child aged under 16 years to take part in an act of sexual penetration or an indecent act, or where the accused is in a relationship of care, supervision or authority with the victim, the sexual offence of soliciting or procuring a child aged under 18 years to take part in an act of sexual penetration or an indecent act.

The provision identifies the sorts of relationships that are captured in the offence of soliciting or procuring a child under 18 (for example, amongst others, a child’s teacher, foster parent, sports coach or legal guardian). As a consequence of this new expanded offence [19] repeals the current section 60 dealing with soliciting acts of sexual penetration of, or indecent acts with a child.

Evidence Act 1958

[25]. Amends section 23 to create a structured approach to assessing the competency of a witness who is a child or a person with a cognitive impairment.

[29]. Amends to clarify section 32C (exclusion of certain confidential communication evidence) concerning confidential counselling communications between a victim and a counsellor.

[33]. Complainant’s prior sexual history – Amends section 37A to further restrict the test for granting leave to receive evidence about a complainant's prior sexual activities by requiring the court to be satisfied that the evidence has substantial relevance to a fact in issue and that the admission of it is in the interests of justice.

Right of accused to cross-examine witnesses in person

[35]. Accused not to cross-examine in person certain protected witnesses in prosecutions of sexual offences – Inserts new section 37CA to prohibit cross-examination of protected witnesses (the complainant and family members) in person by the accused. It sets out a special procedure whereby an accused who has not obtained legal representation, after being given a reasonable opportunity to do so must have a legal practitioner appointed to him or her by Victoria Legal Aid for the purpose of cross-examining the protected witness.

If the accused person refuses the legal representation provided under the proposed section, the court must then warn the accused that he or she will not be allowed to adduce evidence from a witness in relation to a fact in issue with the intention of contradicting the evidence of a protected witness in relation to that fact, if the fact upon which he or she intends to rely to contradict the evidence of the protected witness has not been put to that protected witness during cross-examination.

The section requires the court to warn the jury where the accused is only represented for the purposes of cross-examining a protected witness, that this procedure is routine, that no adverse inference may be drawn from this procedure, and that evidence given under cross-examination conducted through the new procedure should not be treated differently as a result.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights or freedoms’.

Rights and Freedoms – Criminal trial – Sexual Offences – Right to personally cross-examine prosecution witnesses – International law – Law Reform Commission recommendations to prohibit direct personal cross- examination of protected witnesses – Cross-examination only through counsel – Abridgement of rights of accused – Whether prohibition of personal cross-examination reasonable and proportionate.

The Committee notes that International law[*] recognises that an accused person has the right to examine or have examined witnesses against them and to examine witnesses on there own behalf under the same conditions as witnesses against them.

The Committee observes that the amendment to the Evidence Act 1958 creates a new procedure which will involve a prohibition on an accused person to cross-examine in person, certain protected witnesses. The Committee considers that the provision may abridge the full extent of the right of an accused person in criminal trials of a sexual nature to cross-examine certain witnesses to the extent that the right may only be exercised through counsel. The Committee notes the policy reasons and recommendations made by the Victorian Law Reform Commission (VLRC) in August 2004 to amend the Act by prohibiting cross-examination of a complainant by an unrepresented accused.[#] The Committee observes that the VLRC noted that the New South Wales Law Reform Commission had made similar recommendations for reform.

The Committee notes that in respect to the fair treatment of witnesses, sections 39 and 40 of the Act now provide a court discretion to forbid or disallow indecent, insulting or annoying questioning.

Whilst the Committee considers that the guarantee of a fair trial in a criminal prosecution is a fundamental right the Committee considers that the question whether these abridging the right to cross-examine witnesses is reasonable and proportionate and whether that right can be adequately protected without allowing the accused to personally cross-examine the complainant and other protected witnesses is a question for Parliament’s consideration.

Notes:

[*] Article 14(3)(e), International Covenant on Civil and Political Rights.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

[Underlining added]

[#] Victorian Law Reform Commission, Sexual Offences: Final Report, August 2004 at 4.119 to 4.152 [Reference – www.lawreform.vic.gov.au].

[37]. Inserts new section 37E to provide that in sexual offence cases, a court may receive expert evidence regarding the nature of sexual assault and the factors that may affect the behaviour of persons who have experienced it. The court retains discretion to exclude evidence that is not sufficiently related to the facts in issue.

[38]. Inserts a new Division 3AA in Part II concerning the evidence of certain witnesses who are children or persons with a cognitive impairment.

New section 41C provides for the admission of expert evidence in sexual offence cases for the purpose of assessing the competence of a child or a person with a cognitive impairment to give evidence under section 23.

Exception to the hearsay rule

New section 41D introduces a statutory exception to the hearsay rule in sexual offence cases where the complainant is a child under the age of 17. Where such a witness has made a previous representation and is available to give evidence about the existence of a fact of which he or she intended to assert by the representation, or where the child complainant's credibility is relevant, to support his or her credibility, the hearsay rule does not apply to evidence of the representation that is given by the child complainant or by a person who saw, heard or otherwise perceived the representation being made. This exception is subject to the court being satisfied that the evidence is relevant to a fact in issue and is sufficiently probative, having regard to the nature and content of the representation and the circumstances in which it was made.

Where evidence that is the subject of the exception is admitted, the court must warn the jury that it may not be as reliable as direct evidence. The court's discretion to exclude evidence is retained.

New section 41E provides for a complainant who is a child or a person with a cognitive impairment to give evidence through alternative arrangements that include the giving of evidence from outside the court room via CCTV, the giving evidence in the court room through the use of screens and the giving evidence in the presence of a support person of the complainant's choice.

These alternative arrangements must be utilised unless the complainant is aware of his or her right to give evidence in this way but wishes and is able to give evidence in the court room and the prosecution makes an application for the alternative arrangements not to be utilised.

New section 41F provides protection from improper questioning of witnesses who are children or persons with a cognitive impairment. An improper question is a question that is confusing or misleading, is phrased in inappropriate language, is annoying, harassing, intimidating, offensive, oppressive or unduly repetitive.

New sections 41G and 41H creates a presumption of pre-recording the evidence of a complainant who is a child or a person with a cognitive impairment in a sexual offence trial. Evidence is to be recorded in a special hearing within 21 days of the accused being committed to stand trial. Evidence given at a special hearing is to be treated as if it were given through direct testimony and that may be admitted in subsequent proceedings such as a retrial, appeal or in proceedings for other charges arising out of the same circumstances.

Notwithstanding the new pre-recording of evidence provisions in the Bill a court may, in certain circumstances, grant leave to cross-examine a witness if it is in the interests of justice to do so 41H(8).

Magistrates' Court Act 1989

[41]. Prohibition of cross-examination in a committal proceedings of a child or person with a cognitive impairment in a prosecution of a sexual offence – Inserts new clause 11A into Part 5 of Schedule 5 to prohibit cross-examination of a complainant who is a child or a person with a cognitive impairment in committal proceedings for sexual offences where such a complainant has made a statement a copy of which is served in a hand-up brief.

The Committee reports to Parliament pursuant to a term of reference provided in section 17(a)(i) of the Parliamentary Committees Act 2003, – ‘trespasses unduly on rights or freedoms’.

Rights and freedoms – Fair trial – Criminal prosecutions of sexual offences – Children and persons with cognitive impairment not to be cross-examined at committal proceedings – Cross-examination of children and persons with a cognitive impairment at special hearings under new section 41G – Whether amendments provide a proportionate balance of rights to accused and to certain vulnerable complainants – Whether an undue infringement of rights of accused to a fair hearing.

The Committee notes that the amendment to the Act will prohibit the cross-examination of children and persons with a cognitive impairment in committal proceedings involving sexual offences. The Committee has previously noted that amendments to be made to the Evidence Act 1958 will require evidence given by children and person with a cognitive impairment to be pre-recorded at a special hearing by means of video-recording and is to be presented at trial in the form of that recording. The Committee also observes that proposed clause 11A of Part 5 of Schedule 5 of the Act will require that a statement or transcript of evidence of a child complainant or a complainant with a cognitive impairment is to be included in the hand-up brief made available to the defendant.

The Committee further observes that notwithstanding the new pre-recording of evidence provisions in the Bill a court may, in certain circumstances, grant leave to cross-examine a witness if it is in the interests of justice to do so 41H(8).

The Committee notes the report and recommendations made by the Victorian Law Reform Commission in August 2004 recommending prohibition of cross-examination of children and people with cognitive impairment at committal hearings.[^]

The Committee observes that there are here two competing interests involving on the one hand the right of an accused person to know the case to be made against him and on the other hand the rights of a complainant to be protected from repetitive and traumatic cross-examination.

Whether the provisions reach an appropriate balance and afford a fair trial is a question for the Parliament’s consideration.

[^] Victorian Law Reform Commission Sexual Offences: Final Report, August 2004 at 3.23 to 3.75 [Reference – www.lawreform.vic.gov.au].

The Committee makes no further comment

Guardianship and Administration (Further Amendment) Bill

Introduced: 15 November 2005
Second Reading Speech: 15 November 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Rob Hulls MLA
Portfolio responsibility: Attorney-General

Purpose

This Bill amends the Guardianship and Administration Act 1986 (the ‘Act’) regarding consent to medical research procedures and makes other minor and technical amendments to the Act. Consequential amendments are also made to the Mental Health Act 1986.

Content and Committee comment

[Clauses]

[2]. The provisions in the Bill come into operation on proclamation but not later than by 1 November 2006.

[3 to 11]. Contains a series of amendments designed to establish a new regime to govern the carrying out of medical research procedures on a person who is incapable of consenting to the procedure. The amendments will have the effect of differentiating between a medical research procedure and a special procedure. A special procedure includes sterilisation, abortion and tissue removal.

Medical research procedure means a procedure carried out for the purposes of medical research, including, as part of a clinical trial, the administration of medication or the use of equipment or a device or a procedure prescribed by regulations.

Under the proposals, a registered practitioner considering whether a medical research procedure is authorised under the Act would generally need to consider the following —

Has the relevant human research ethics committee approved the relevant research project?
If so, the next stage is to consider whether any one of the following applies —
- Is the medical research procedure required as a matter of urgency to save the patient's life or prevent serious damage to the patient's health? If so, the procedure may be performed under current section 42A (carrying out of emergency medical or dental treatment without consent).
- If section 42A (emergency medical or dental treatment) does not apply, is the patient likely to be capable of consenting within a reasonable time? If so, the practitioner should wait and seek the patient's consent (new section 42R). What constitutes a reasonable time will vary and depends on each patients circumstances.
- If consent within a reasonable time is not possible or not relevant, is there a "person responsible" (ie: a medical treatment agent, guardian, enduring guardian or next of kin) available who can consider whether to consent on behalf of the patient? If so, then consent can be sought from the person responsible under the new section 42S.
- If none of these apply, the procedure may be authorised under new section 42T if the criteria in that section are satisfied

New section 42T provides a scheme under which procedural authorisation to perform a medical research procedure on a patient may be provided in certain circumstances and only applies if the person responsible for the patient cannot be ascertained or contacted.

Procedural authorisation may only occur if all the criteria prescribed in paragraphs (a) to (g) are satisfied.

New section 42U sets out the patient’s ‘best interests’ principles.

New section 42V sets out the circumstances in which an application may be made to VCAT in relation to any matter, question or dispute relating to the best interests of a patient.

VCAT must give notice of an application, hearing and order made in respect of the application, to the Public Advocate and any other person VCAT considers has a special interest.

New section 42W provides that a person responsible may seek advice from the VCAT for directions or an advisory opinion.

New section 42Y contains offences and penalties for carrying out a medical research procedure on a patient (other than in a section 42A emergency situation) unless the procedure is authorised by law. The maximum penalty for this offence is imprisonment for 2 years or 240 penalty units or both.

New section 42Z sets out the defences (acting in good faith) for a registered practitioner who supervises or performs a medical research procedure on a patient.

[18]. Inserts a new section 47B to provide that in appropriate cases a court or tribunal may approve payment of reasonable costs out of the estate to an administrator or former administrator.

The Committee makes no further comment

Infringements Bill

Purpose

The Bill will provide for a new framework for the issuing, serving and enforcement of infringement notices, and amends the Magistrates' Court Act 1989, the Road Safety Act 1986 and the Subordinate Legislation Act 1994.

Content and Committee comment

[Clauses]

[2]. The Act will come into operation on 1 July 2007 if it is not proclaimed earlier.

The Committee notes this extract from the explanatory memorandum –

The new system is substantially expected to operate from mid-2006. A maximum of one extra year is included in this commencement provision to allow for the contingency of a later start date in relation to any component of the Bill.

The Committee notes that the Minister’s Second Reading Speech also refers to the Act commencing on 1 July 2006.

Official Warnings

[8 to 11]. An issuing officer may serve a person with an official warning rather than issue an infringement notice if the officer believes on reasonable grounds that a person has committed an infringement offence and that it is appropriate in all the circumstances to serve an official warning.

Infringement Notices

[12 to 20]. Sets out the forms and methods by which an infringement notice may be served and the time in which they must be paid. An enforcement agency may accept late payment in certain circumstances.

A person served with an infringement notice may elect to have the infringement offence heard in Court.

An enforcement agency may withdraw an infringement notice for a lodgeable infringement offence at any time before an enforcement order is made, and for any other infringement offence, at any time before the expiry date for bringing a proceeding in relation to the offence.

Internal Reviews

[22]. A person who has been served with an infringement notice may apply to an enforcement agency for review of the decision to issue the notice on the grounds that the decision was contrary to law, involves a mistake of identity, meets the "special circumstances" criteria, or the conduct should be excused having regard to any exceptional circumstances.

Penalty Reminder Notices

[29]. An enforcement agency may serve a penalty reminder notice if an infringement penalty has not been paid within the period specified in the infringement notice.

[30]. A person served with a penalty reminder notice may elect to have the matter heard in Court.

[32]. The person on whom an infringement notice has been served expiates the offence by paying the infringement penalty and any costs within the specified period, including the period for late payment.

Payment not an admission of guilt and no conviction is recorded

[33]. If a person expiates an offence, no further proceedings may be taken nor any conviction recorded. The payment of an infringement penalty is not to be taken as an admission of guilt in relation to the offence or an admission of liability for the purpose of any civil claim or proceeding, and must not be referred to in any sentencing report.

[34]. The expiation of an infringement offence does not prevent the incurring of demerit points under section 25 of the Road Safety Act 1986 or section 181B of the Transport Act 1983.

[36 to 38]. Deals with the cancellation of certain infringement notices where the person was not personally served and was not in fact aware that the notice had been served.

Payment plans

[42 to 53]. Provides for the Department of Justice to maintain a central payment plan facility but does not prevent agencies having their own system. A natural person served with an infringement notice may apply for a payment plan at any time before the infringement penalty is lodged with an infringements registrar or at any time before the expiry date for bringing a proceeding in relation to other infringement offences. The enforcement agency must offer a payment plan if the person meets the eligibility criteria. An enforcement agency may, in its discretion, offer a payment plan to a person who has applied even if the person does not meet the criteria.

[54 to 76]. Sets out the circumstances in which an enforcement agency may lodge details of an infringement penalty in respect of a lodgeable infringement offence with an infringements registrar.

An infringements registrar may make an enforcement order that the person pay the infringement penalty and prescribed costs and the enforcement order is deemed to be an order of the Court.

[76 to 79]. Deals with the procedure applying to payment orders and the consequences applying on default of a payment order.

Infringement warrants

[80]. Provides that an infringements registrar must issue an infringement warrant against a person who defaults for more than 28 days in the payment of a fine relating to an enforcement order notice or of any payment under a payment order.

[82]. Provides that an infringement warrant authorises the seizure and sale of personal property or the arrest of the person named in the warrant. If the person executing the warrant cannot find sufficient personal property, he or she is given power to break, enter and search for the person named in the warrant in any place and to arrest the person. The person named in the warrant must not be arrested unless the person executing the warrant has a reasonable belief that there is not sufficient personal property of the person named to cover the outstanding amounts.

Person arrested may be released on bail

[83]. The person to whom an infringement warrant is directed must cause the person named in the warrant to be brought before a Court within 48 hours of being arrested to be dealt with according to law or to be released on bail in accordance with the endorsement on the warrant.

[87]. A person executing an infringement warrant may serve a notice of seizure of property on the person named in the warrant, or a person who is in possession of the named person's personal property, informing that person that they are responsible for the safe-keeping of the property seized. It is an offence to interfere with, dispose of or remove that property, or to deface or remove any mark indicating that it had been seized.

[88]. No steps shall be taken to execute an infringement warrant unless a seven-day notice containing the prescribed details has been served on the person in respect of whom the warrant has been issued.

[90]. After the expiry of the seven-day notice period, a demand for payment must be made on the person in respect of whom the warrant has been issued, and any step may be taken in execution of the infringement warrant unless the person has applied for or obtained a payment order, or applied for the revocation of an enforcement order.

[93]. The rules, practice and procedure operating in respect of warrants to seize property in enforcing orders in civil proceedings under the Magistrates' Court Act 1989 will apply with respect to the seizure of property under infringement warrants, with appropriate modification.

Detention, immobilisation or sale of motor vehicles

[96]. If a police member intercepts, or the sheriff or a police member finds parked or left standing a motor vehicle of a registered operator against whom an infringement warrant has been issued he or she may detain, immobilise or remove the vehicle.

[97]. The sheriff or a police member may detain, immobilise or seize a motor vehicle. This includes powers of entry into public and private land in certain circumstances for the purposes of this Part.

[100]. A detained vehicle must be released to the registered operator if costs are paid in full or in other prescribed circumstances.

[101]. The sheriff may seize and sell the motor vehicle or any item left in it if, after the prescribed period, an amount remains outstanding under an infringement warrant issued against the registered operator.

[102]. A person other than the registered operator may recover a motor vehicle or item seized under this Part if the person can provide satisfactory evidence to the sheriff that the person was entitled to possession of the vehicle or item.

[105]. Section 42 of the Supreme Court Act 1986, which provides that certain types of property must not be seized, does not apply, so that the sheriff or police member may detain or immobilise, or seize and sell, a motor vehicle even if that motor vehicle is primarily used by that person as a means of transport.

[106]. A person who buys a motor vehicle or an item under this Part acquires good title if the person buys the vehicle or item in good faith and without notice of any defect in the title.

[110]. The sheriff may direct VicRoads to suspend the driver licence of a person in default.

[112]. The sheriff may direct VicRoads to suspend the registration of a motor vehicle if the registered operator of a vehicle is a person in default.

[114]. The sheriff may direct VicRoads not to renew a driver licence of a person against whom an infringements warrant has been issued, or not to renew the registration of a motor vehicle or trailer if an infringement warrant has been issued against the registered operator, whether or not the person has been served with a seven-day notice.

[116]. If the registered operator of a motor vehicle or trailer is a person in default, the sheriff may direct VicRoads not to transfer the registration of the vehicle or trailer.

[120]. An infringements registrar may issue a summons for oral examination if the infringements registrar has not been provided with sufficient information regarding the financial circumstances of the person to make a payment order, an attachment of earnings order or an attachment of debts order.

[121]. If a person fails to attend an oral examination or fails to comply with the summons, an infringements registrar may issue a warrant to arrest the person in accordance with the Magistrates' Court Act 1989.

Attachment of earnings orders

[122 to 133]. Provide for attachment of earnings and debts orders.

Charge over or sale of Real Property

[134 to 146]. This Part of the Act applies if a person owes not less than a prescribed amount under an outstanding infringement warrant, and enforcement action through seizure and sale of personal property or suspension of driver licence or vehicle registration, has been unsuccessful, or is not appropriate or possible.

Unpaid community work

[147 to 157]. An infringement offender may elect to perform unpaid community work under a community work permit. A community work permit may not be issued if the outstanding fines under the relevant infringement warrant exceed $10,000. If during the term of a community work permit, part of the outstanding fines are paid by or on behalf of the infringement offender, the number of hours of work which the offender is required to perform must be reduced proportionately.

[160]. The Court may order the imprisonment of an infringement offender for a period of 1 day for each fine unit, or part of a fine unit, of the amount outstanding under an infringement warrant. Where the Court is satisfied either that the infringement offender has a mental or intellectual impairment, disorder, disease or illness or where "special circumstances" apply, the Court may discharge all or part of the outstanding fines or adjourn the matter for a period up to 6 months.

The Court may discharge all or part of the outstanding fines or adjourn the matter for a period of up to 6 months or to reduce the term of imprisonment where it is satisfied that imprisonment of the infringement offender would be excessive, disproportionate and unduly harsh. Where the Court does make an order for imprisonment, a warrant to imprison may be issued and the Court may also make an instalment order or a community based order.

[161]. Where an infringement offender has been imprisoned under an infringement warrant, payment of the whole or part of the outstanding fines may be made and the offender discharged where all outstanding fines are paid and the offender is not in custody for any other matter. Where part payment is made, the infringement warrant must be amended and at the end of the reduced term, the infringement offender must be discharged where the offender is not in custody for any other matter.

[168]. The Governor in Council may make regulations for the purposes of the Act.

[174]. Amends section 134 of the Magistrates' Court Act 1989 to insert a provision providing that a person is guilty of contempt of court if, having been summoned under the proposed Act, the person refuses or neglects to attend without sufficient cause.

Subordinate Legislation Act 1994

[177]. Inserts a new section 6A into the Act, setting out a consultation procedure for proposed statutory rules which provide for the enforcement of an offence by an infringement notice. The procedure requires the responsible Minister to certify that the Department of Justice has been consulted about the suitability of the proposed statutory rule to be an infringement offence and to be enforced under the new Act and that the Attorney-General's guidelines under clause 5 of the Bill have been taken into account in preparing the proposed statutory rule and that it meets the guidelines or if it does not meet the guidelines, should be made anyway for the specified reasons.

[180]. Makes consequential amendments to the Road Safety Act 1986 concerning the suspension of any motor vehicle or trailer registration if the registered operator is a person in default under the proposed Act.

[185]. Inserts new section 30AA in the Road Safety Act 1986, creating an offence for driving a vehicle while the person's driver licence or permit is suspended in accordance with the proposed Act.

The Committee makes no further comment

Justice Legislation (Miscellaneous Amendments) Bill

Purpose

The Bill makes miscellaneous amendments to the —

Appeal Costs Act 1998
Constitution Act 1975
County Court Act 1958
Courts Legislation (Judicial Conduct) Act 2005
Crimes Act 1958
Evidence Act 1958
Public Notaries Act 2001
Serious Sex Offenders Monitoring Act 2005
Sex Offenders Registration Act 2004
Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’)
Working with Children Act 2005.

Content and Committee comment

[Clauses]

[2]. Other than clauses 6 and 20, the provisions in the Bill come into operation on the day after Royal Assent. Clause 6 is deemed to have come into operation on 1 May 2005 (see below). Clause 20 is deemed to have come into operation on 1 August 2005 as that is the date that the item being amended came into operation (see below).

[6]. Inserts a new sub-section 83(1C) in the Constitution Act 1975 to provide that a Judge of the Supreme Court appointed prior to the commencement of section 16 of the Judicial Remuneration Tribunal Act 1995, who has served for not less than 10 years in the office of Judge of the Court and has attained the age of 60 years, may retire from office prior to attaining the age of 65 years. On attaining the age of 65 years, a judge retiring in accordance with new sub-section 83(1C) will be entitled to the same pension provisions as a judge retiring at age 65. This amendment seeks to redress an unintended consequence of the repealing of section 80A of the Constitution Act 1975, and so is backdated to the date of that repeal by section 3 of the Courts Legislation (Judicial Appointments and Other Amendments) Act 2005.

[20]. Amends Schedule 1 to the Sex Offenders Registration Act 2004 to correct an error whereby 2 items in Schedule 1 were numbered 6A. The amendments change the number of the item that commenced secondly, and which is not cross-referenced by other items in the Schedule. The now section 6AA was originally inserted by section 21 of the Sex Offenders Registration (Amendment) Act 2005, and this clause is being backdated to 1 August 2005, when section 21 came into operation.

Victorian Civil and Administrative Tribunal Act 1998

[22]. Amends section 11A of the Act to enable acting judges of the Supreme Court and County Court to be appointed as short-term Vice Presidents. The possible term of appointment for short term Vice-Presidents has been extended from 3 months to 6 months.

[24]. Amends section 25A(b) of the Act to give the VCAT President discretion to consent to former VCAT members representing a party in a proceeding that is in the former member's VCAT List.

[27]. Amends clause 66 of Schedule 1 to the Act to provide that unless the parties that are present at the hearing of the proceeding disagree, a non-legal VCAT member may determine a question of law. Parties who are not present or represented at the hearing may challenge this determination at a later time under section 120 of the VCAT Act.

The Committee makes no further comment

Liquor Control Reform (Amendment) Bill

Purpose

This Bill amends the Liquor Control Reform Act 1998 (the ‘Act’) to provide additional powers to the Director of Liquor Licensing (the ‘Director’) to make, vary and revoke late hour entry declarations for a particular area or locality and also provides that this new power will be subject to review by VCAT.

The Committee notes this extract from the explanatory memorandum –

Late hour entry declarations are an operational response designed to tackle amenity issues associated with unruly patron behaviour (such as violence, property damage, vandalism and other anti-social behaviour) in the early hours of the morning in relation to specified licensed venues. The essential feature of a late hour entry declaration is that it prohibits entry to licensed premises by patrons after a designated time. Patrons inside the licensed premises at the designated late hour entry time are free to stay on until closing time or leave at any other time, but new patrons may not enter from a designated time.

Content and Committee comment

[Clauses]

[2]. Sections 4(2) and 5 come into operation on Royal Assent. The remaining provisions will come into operation on proclamation but not later than by 1 December 2006.

[5]. Inserts a new section 3AB defining ‘what is intoxication’ for the purposes of the Act. The Director must issues guidelines containing information about how to determine whether a person is in a state of intoxication for the purposes of the Act.

Licence conditions – security cameras

[7]. Inserts new section 18B into the Act to provide that if the Director imposes a condition on a licence requiring the licensed premises to be fitted with security cameras, it is a further condition of the licence that the security cameras comply with any prescribed standards set out in regulations.

Late hour entry declarations

[9]. Inserts new Division 7A into Part 2 of the Act to provide that the Director may make a late hour entry declaration for an area or locality. Patrons already present in licensed premises at the time from which a late hour entry declaration applies to the premises may leave the premises at any time or remain in the premises at all times while the premises are authorised to trade.

[10]. A licensee to which a late hour entry declaration applies may apply to the Victorian Civil and Administrative Tribunal for review of a decision of the Director to make or vary the late hour entry declaration.

The Committee makes no further comment

Terrorism (Community Protection) (Amendment) Bill

Introduced: 15 November 2005
Second Reading Speech: 16 November 2005
House: Legislative Assembly
Minister introducing Bill: Hon. Steve Bracks MLA
Portfolio responsibility: Premier

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